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21 September 2016

The Doctrine of Auto-Block (Note)

The Doctrine of Autoblock was introduced to Indian law by the Supreme Court in WP(C)341/2008, Sabu Mathew George v. Union of India, on 19/09/16. The intention of the order in which it found mention appeared to be to block viewer access to foetal sex determination ads. Unfortunately, the so-called doctrine was not explicitly restricted thereto, and it remains to be seen how it will be applied in future.

The doctrine appears to require the online search providers at which the order it appears in is directed to act proactively instead of responsively as the 2011 Intermediary Guidelines contemplate; this has the potential to change the structure of intermediary liability and the 'safe harbour' extended to intermediaries. Pertinently, the order does not appear to be directed at the online search providers in their capacity as publishers of illegal ads which it is conceivable that they could be: it appears to be directed at them as intermediaries.

Further, the mechanism through which auto blocks are intended to function involve not displaying content which is flagged by certain predetermined words and expressions. As such, the blocks do not consider the context in which the specified words and expressions may be used, and it is likely that they will not only block illegal content but also legitimate content which includes mere mention of content intended to be blocked.

(Personally, while I'm sympathetic to illegal content of the nature contemplated by the order being blocked, the structure of the block appears to be too wide not to raise concerns.)

Updates

February 2017:

Here's the thing: Block a term like "sex determination", you'll also likely block info of where to report its occurrence. #collateraldamage

In a decision dated January 18, 2017, but issued with corrections on February 22, 2017, by the Delhi High Court, it was explicitly stated that the autoblock doctrine/principle is limited in its application to the Pre-Natal Diagnostic Techniques Act. The relevant text from the decision (i.e. Kent RO Systems Ltd. & Anr. v. Mr. Amit Kotak & Ors.; CS (Comm) 1655 of 2016) reads as follows: "Post Script: Before this order has been corrected and released, Supreme Court has vide Order dated 16th February, 2017 in WP(Civil) No.341/2008 titled Sabu Mathew George Vs. Union of India referred to the principle/doctrine of “auto block” and constitution by Google India, Microsoft Corporation (I) Pvt. Ltd. and Yahoo India of an “In House Expert Body” to detect violation on their respective platforms of the provisions of The Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PNDT Act), as the counsel for the plaintiffs herein has been contending, in the context of enforcement of the PNDT Act, 1994. However that was under Section 22 of PNDT Act and not under the IT Act or Rules."

April 2017: In its order dated April 13, 2017, in the PIL before it (i.e. WP (Civil) 341/2008) in which the doctrine of auto-block was first introduced, the Supreme Court appeared to have reconsidered the doctrine. It stated: "It is further accepted by them [the respondents, i.e., intermediary search engine providers] that if the Nodal Officer of the Union of India communicates to any of the respondents with regard to any offensive material that contravenes Section 22 [of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994], they will block it." The Court then had the matter listed on 5.9.2017 'so that the outcome of this acceptance will be plain as day'.

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